SC GYANVAPI
of worship as it existed on August 15, 1947.
The court clarified that its May 17 order on protecting a section of Varanasi’s Gyanvapi Masjid complex where a “Shivling” was ostensibly found shall continue, besides the direction that Muslims will have the right to offer namaz in the mosque without any hindrance. It further directed the Varanasi district magistrate to ensure arrangements for wazu (ablution) for Muslims, but did not entertain a plea of the mosque management committee to allow them to use the pond or the tap (located close to the protected site) for water.
Adjourning the case to the second week of July, the bench added that its May 17 order will remain operational until the Varanasi district judge’s decision on the maintainability of the suit filed by the Hindu petitioners, and for a further period of eight weeks so that parties aggrieved by such an order could challenge it in appeal.
The survey was ordered by the Varanasi civil court in April on a suit by five women, who sought daily prayers and worship rights at the Maa Shringar Gauri Sthal, a Hindu shrine, behind the western wall of the Kashi Vishwanath Temple
Gyanvapi Mosque complex. They claim the temple was partially razed to build the 17th-century mosque. The Friday order virtually denies all the requests made by the mosque committee in the SC: to stay the proceedings before the civil court; to allow unrestrained access inside the mosque complex; to invalidate the advocate commissioner’s report; and to rule against maintainability of the Hindu women’s suit on the premise of the prohibition under the Places of Worship Act, 1991. Instead, the bench resorted to the course it suggested on the first day when it heard this case, on May 17. On that day, the bench commenced the proceedings by suggesting to senior counsel Huzefa Ahmadi, who represents the Anjuman Intezamia Masjid Committee, that the matter should go back to the civil court for deciding their application to reject the suit on maintainability.
Ahmadi was at that point agreeable to this course but had some caveats. He wanted the (other) proceedings before the civil court to be stayed and an unhindered access to the mosque complex. While the bench, on Friday, did not apparently grant these prayers, it handed over the case to a more senior civil judge in Varanasi and kept the interim arrangement intact. The bench made it clear that the order is not an aspersion on the Varanasi civil judge but indicates a preference to have a more experienced judge to deal with the matter.
Back to civil court
The court told Ahmadi that the “rule of law has to be followed by all the parties”, emphasising that the edifice of his grievances lies in maintainability of the suit, which cannot be looked into by the SC in the first instance. Ahmadi resisted: “If this is allowed to fester, the directions under the civil suit will only remain a pipe dream. There is a narrative which is being created. Commission reports are being leaked selectively. This is disturbing communal harmony. Don’t look at this from the point of one suit alone. Look at the ramifications across the country.” But the court remained firm: “The moment you argue that the appointment of the advocate commissioner (who conducted the survey) is void ab initio (nullity) because the suit is barred by the 1991 Act, it is farfetched...we cannot decide the maintainability of the suit here.”
It pointed out that the court may have to look into the advocate commissioner’s report if it were to decide on the maintainability of the suit.
During the hearing on Friday, the bench underlined that its May 17 order aimed at striking a balance and to maintain “equanimity on ground”.
“We are not allowing the trial court to run amok. Therefore, we hold the balance. We have created a framework to maintain peace and an atmosphere of fraternity between communities as the Constitution envisages. It is our duty to uphold that message,” said the bench, as Ahmadi raised apprehensions that the Varanasi civil court proceedings could be replicated to other places too.